With an aging population, it’s important to get your legal documents in order — and the earlier, the better, says Toronto wills and estates lawyer Lisa Laredo.
For the first time in history, statistics show that seniors comprise a bigger share of Canada’s population than children, she tells AdvocateDaily.com.
“If you lose mental capacity, you want to ensure your wishes are known beforehand. Nobody wants to be in a situation where they have to decide for someone without any indication of what that person might want,” Laredo says.
Regardless of your circumstances, there are certain documents everyone should have, namely a power of attorney (POA) for personal care and power of attorney for property, she says.
When it comes to personal care, if you lose the capacity to make medical decisions, the POA will act on your behalf, says Laredo, principal with Laredo Law.
“When sitting down with a lawyer to draft your POA, you will be asked if you want to be resuscitated or if you want to donate organs or die at home as well as other questions,” she says. “It gives your power of attorney a road map of the type of treatment you want when you can’t make those decisions.”
The property POA allows someone acting on your behalf to access bank accounts, wills, safety deposit boxes and to make all the financial decisions when you have no capacity, Laredo explains.
When choosing a POA, she says do so wisely.
“There is no shortage of cases where POAs abuse their power. Money can sometimes cloud someone’s judgment,” Laredo says.
That’s why it is so important to make sound decisions and visit your lawyer while you have the capacity, she says.
“If nothing is written down you may have people acting for you that you never would have chosen in the first place.”
The point at which a POA would begin decision-making on your behalf is initiated by different circumstances, Laredo explains.
“If someone who is older needs emergency surgery and she has no capacity to decide by herself, that would trigger a power of attorney,” she says. Likewise, when someone with dementia starts to lose capacity incrementally, that would also trigger a power of attorney, Laredo adds.
“A POA can also be initiated for a limited period until someone regains his or her capacity,” she says.
An example would be someone who is in an accident and loses capacity for a short term.
Ontario’s Substitute Decisions Act dictates when a person can legally act on behalf of another, Laredo explains.
A capacity assessment, which is a formal evaluation of a person’s mental capacity, is sometimes needed.
“Questions, such as ‘where do you bank and how much money do you have in your account?’, will be asked in such an assessment,” she says.
Laredo says even if you have a POA, it’s good to review your finances and your will with that person from time to time.
“You can have conversations with your loved ones but you also need to have it clear in documents,” she says.
“It’s important to put your wishes in writing. It’s never too late, and then there’s no guessing.”
She says being a power of attorney can be a demanding job, but having your will and POAs up to date means you are giving that person, your loved ones and yourself peace of mind.
“The value you’re giving somebody is the ability to take care of you and make sure your wishes are adhered to as opposed to leaving everybody in the lurch. If you don’t have your documents in order, you’re leaving your family frantically trying to figure out what they’re supposed to be doing.”
